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[1986] ZASCA 13
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Clan Syndicate (Pty) Ltd. v Peattie (402/1984) [1986] ZASCA 13; [1986] 2 All SA 219 (A) (13 March 1986)
LL
Case No 402/1984
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
CLAN SYNDICATE (PROPRIETARY) LIMITED
Appellant
and
RONALD
JOHN REID PEATTIE
First Respondent
ROBERT JOHN RICHARD PEATTIE
Second Respondent
RAYMOND LESLIE FREESE
Third Respondent
CORAM
: JOUBERT, BOTHA, HEFER, BOSHOFF JJA
et
GALGUT AJA
HEARD
: 21 FEBRUARY 1986
DELIVERED
: 13 MARCH 1986
JUDGMENT
/
BOTHA JA
...
2.
BOTHA JA
:-
The appellant is the owner of a farm in the midlands of Natal, on which there
are extensive plantations of pine, eucalyptus and wattle
trees. Adjoining the
appellant's property, along its south-eastern boundary, is the farm Broughton,
of which the respondents are
the lessees, and on which there are also timber
plantations. On 26 August 1980 a fire broke out in a pine forest on the
appellant's
property. Fanned by a very strong north-westerly wind, it expanded
and spread rapidly in a south-easterly direction, destroying close
on a 1 000
hectares of the appellant's timber. It crossed the boundary on-to Broughton,
where it destroyed about 70 hectares of the
respondents' gum and wattle
plantations. As a re-sult, the respondents suffered damage in an amount of R26
000, as quantified later
by agreement between the parties. The respondents
brought an action for damages against the appellant in the Natal Provincial
Division,
/alleging ...
3.
alleging negligence on the part of the appellant's employees
in relation to both the starting of the fire and its spreading onto Broughton,
and relying on the presumption of negligence provided for in section 23 of Act
72 of 1968. The action was tried by LAW J, who upheld
the respondents' claim and
granted judgment against the appellant accordingly. Against that judgment the
appellant now appeals to
this Court, leave to do so having been granted by the
trial Judge.
Section 23 of Act 72 of 1968 provides as follows:
"Notwithstanding anything to the contrary in any law contained, whenever in
any proceedings under this Act or at common law the question
of negligence in
respect of veld or forest fires arises, negligence shall be presumed unless the
contrary is proved."
It is common cause that the statutory presumption is applicable in the
context of the facts of the present case. This entails that
the appellant at the
trial
/bore ...
4.
bore the onus of proving on a balance of probabilities that
its employees were not negligent either in causing the fire to start or
in
failing to prevent its spreading onto Broughton. The appellant sought to
discharge the burden of proof by adducing the evidence
of a number of its
employees and certain other witnesses. On that evidence the trial Judge found
that the appellant had failed to
discharge the onus. It is that finding that
falls to be considered in this appeal.
As I have mentioned, the fire occurred on 26 August 1980. The evidence
reveals that in the month of August the so-called fire season
in that area
reaches its peak. The fire season extends over the dry winter months, from about
May until the onset of the summer rains.
During that period there is a high risk
of severe fire damage occurring in the timber plantations, because of the dry
conditions
prevailing in the forests. The appellant's forest estates manager,
Swart, who has
/had ...
5.
had many years' experience in forestry, said in his evidence
that in August the entire management of the appellant were acutely aware
of the
danger of fire. With specific reference to 26 August 1980, Swart testified that
the pine forest in which the fire started
was very dry, "you had a kind of
tinderbox there", which required especially careful attention, and that the
situation was particularly
dangerous. The appellant's general manager, Gibbs,
said that on that day there was "a very incendiary" and "dangerous" situation
in
the area where the fire started.
It has been mentioned also that the fire was fanned by a very strong
north-westerly wind. This wind is known in that locality as a
berg wind. From
the evidence it is apparent that in the dry season the occurrence of a berg wind
is dreaded by everyone concerned
with forestry, because of the awesome rapidity
with which it can turn a tiny flame into a raging
/conflagration ...
6.
conflagration that is practically unstoppable until the wind
subsides. Swart said in his evidence that berg winds were common at that
time of
the year; he estimated that there could be "up to between 5 and 8 .... per
winter period." On the day in question he arrived
at the scene of the fire
shortly after it had started. He described the state of the wind at that stage
as "an exceptionally high
velocity" berg wind, "very dry and very hot", and
"exceptionally hazardous."
It is clear on all the evidence that the wind had already reached the
dimensions described by Swart, at the time when the fire started.
Counsel for
the appellant sought to argue, however, that there was a sudden increase in the
velocity of the wind very shortly before
the start of the fire. In support of
the argument counsel pointed to passages in the evidence of the witnesses Gibbs,
Swart, and
Byrne, the appellant's harvesting manager, in which they gave their
impressions of
/the ...
7.
the condition of the wind at various stages of the morning
prior to the outbreak of the fire. I do not consider it necessary to discuss
the
passages referred to. For the purposes of my judgment, in view of what is to
follow later, the following observations will suffice.
On the evidence of Gibbs
and Byrne the fire started at approximately 10 o'clock that morning. The
respondents called a witness, Melle,
who has had many years' experience in
forestry. On the morning in question he went from Pietermaritzburg to his
employer's timber
plantations, which are situated some 4 or 5 km to the
north-east of the appellant's property. He arrived there at roughly 8 or 8.30
a
m. He noticed that at that stage the wind, which he had observed earlier was
blowing from the north-west, "was starting to pick
up quite alarmingly", and
that it was "starting to become an abnormal wind." He said that by about 9
o'clock it was "quite obvious"
to him that that day
/"was ...
8.
"was going to be one of those days that the wind was going to
blow", which confirmed the feeling he had had early that morning that
"it was
going to be a nasty fire day", to the extent that he "was frightened of the
conditions". The general tenor of Melle's evidence
was put to the appellant's
witness, Gibbs, in cross-examination, and he accepted it, in effect agreeing
that by not later than 9
o'clock it had become apparent that that day was going
to be a particularly dangerous one. In the result, at best for the appellant,
bear-ing in mind the incidence of the onus, the conduct of the appellant's
employees in relation to the issue of neg-ligence falls
to be assessed upon the
footing that the particularly hazardous weather conditions that existed when the
fire broke out, had already
manifested them-selves about an hour before the fire
started.
The scene is now set for a consideration of how the fire started and what was
done to stop it. The
/appellant ...
9.
appellant called only one witness who was close to the spot
where the fire started, at that time. This was Magagula, the supervisor
of a
gang of 11 labourers engaged in tree-felling operations. He said that the gang
were having breakfast at the side of a road,
except for one of them, Ndlela, who
was felling trees by means of a chain saw some 40 metres from the road-side.
Magagula noticed
smoke coming from the pine needles on the ground about 4 to 5
paces behind Ndlela, at the place where he had just felled a tree prior
to
moving on to the next tree, where he was working at that moment. Magagula went
to investigate, apparently being unsure at that
moment whether the smoke was of
the kind normally emanating from a chain saw when in use, or whether it was
smoke coming from a fire.
He found a fire covering an area of about 4 paces by 3
paces. He shouted to Ndlela and called the other members of the gang. They
broke
branches and tried to beat out the fire. This was
/to ...
10.
to no avail. It is clear from other evidence led by the
appellant that in the prevailing conditions there was no hope of quenching
the
fire in that way. Maga-gula said that there was a knapsack pump at the
road-side. This was the only piece of fire-fighting equip-ment
the gang had with
them. Magagula fetched it and used it in an attempt to extinguish the fire, but,
as he said, "it was ineffective
because the wind was too strong and the fire had
spread". This accords with the evidence of Swart and Byrne: Swart said that a
knapsack
spray would have been of no use 2 to 3 minutes after the start of the
fire, while Byrne said that in the prevailing conditions it
could have stopped
the fire probably only if it had been applied within 30 seconds of the start of
the fire. It is clear, therefore,
that after Magagula had ascertained that a
fire had broken out, there was nothing that he and his gang could have done,
with the
means at their disposal, to prevent
/the ...
11.
the fire from spreading.
Byrne, who was in charge of the tree-felling operations on the appellant's
estate, was travelling in his "bakkie" on a road about
2 km away from the place
where the fire started, when he noticed a thin spiral of smoke at that point. He
immediately raised the
alarm: using the two-way radio he had with him, he
reported the fire to the "operations room", from where the fire-fighting
procedures
on the property are organised and controlled. He hastened to the
scene, and on his arrival there saw that flames, driven by the fierce
wind, were
racing very rapidly along the top of the thick bed of dry pine needles on the
forest floor. He had fire-fighting equipment
on his vehicle (knapsack sprays,
"beaters" and rakes), but he saw at once that it would be futile to try and stop
the fire by those
means. In fact he said that when he saw how quickly the fire
was running, he realised "that we would never get it out in the field
where it
was
/actually ...
12.
actually burning when I saw it." So he drove on, to an area
beyond the fire, with the intention of trying to stop its spreading by
means of
back-burning. One of the appellant's fire-fighting units, called the fire-stop,
arrived on the scene. It was equipped with
a water tank, water hoses, and other
fire-fighting devices. According to Byrne's estimate, it arrived about 10
minutes after he had
raised the alarm. Byrne put it and its crew to use in the
back-burning operation. He did not succeed in halting the spread of the
fire. In
the mean-time Swart, who was in charge of the fire-fighting opera-tions on the
estate, also arrived on the scene, as did
other fire-fighting units of the
appellant. Further attempts were made to stop the fire by means of back-burning.
All of them failed.
It was not until late in the afternoon, after the fire had
done its damage on Broughton, and after the wind had subsided, that the
fire was
brought under control.
/Swart ...
13.
Swart gave detailed evidence of the general precautions taken
by the appellant to prevent the out-break and spread of fires on its
property
and of the fire-fighting equipment, crew, and procedures employed by it. There
is no need to discuss this evidence. It was
fully analysed in the judgment of
the trial Judge, who came to the conclusion that it was
".... clear that the spread of the fire and the resultant damage suffered by
plaintiffs was not caused as a result of any deficiency
in defendant's equipment
or as a result of the defendant's failure to take adequate steps to quell the
fire after it was re-ported
to the control room by Byrne."
This conclusion is fully justified by the evidence.
It follows from what has been said so far, that it is of crucial importance
in this case to con-sider next what the actual cause of
the fire was, and then
to examine the question of negligence on the part of the appellant's employees
in that context.
/At ...
14.
At the outset, it will be convenient to deal briefly with the
appellant's failure to call Ndlela as a witness. Evidence was given
by Swart as
to the pos-sibility of tracing Ndlela to the place where he went to live after
he had left the appellant's service. I
do not propose to discuss this evidence.
Suffice it to say that it falls short, in my view, of establishing that it was
not possible
for the appellant to procure Ndlela's attendance as a witness at
the trial, had it wished to do so. Counsel for the respondents did
not argue for
an adverse inference to be drawn against the appellant from its failure to call
Ndlela, but contended that such failure
constituted an hiatus in the appellant's
case. That is true, of course. Hypothetically, Ndlela's evidence might have
revealed negligence
of some kind on his part in relation to the causation of the
fire, and in that sense the appellant made no effort to discharge the
burden of
proving that Ndlela was not negligent.
/Whether ...
15.
Whether an adverse ultimate finding against the appellant
could be made on this narrow ground is a question I do not propose to consider.
On the basis of Maga-gula's evidence as to what he observed regarding Ndlela's
activities from the road-side, it might be said that
the notion of negligent
conduct on the part of Ndlela was
prima facie
negatived. However that may
be, I proceed to consider the evidence which the appellant did lead concerning
the cause of the fire.
Magagula said that Ndlela was not smoking at the time the fire started; in
fact he is a non-smoker. It was put to Magagula in cross-examination
that he
himself, Magagula, was smoking in the forest where the fire started at the time
when it started. This Maga-gula denied. The
cross-examination on this point was
based on what a witness, one Zondi, would testify. In the event, when Zondi was
called, he did
not give the evidence foreshadowed in the cross-examination.
The
/trial ...
16.
trial Judge accepted Magagula's evidence on this point. When
Magagula was asked what caused the fire, he re-plied that he suspected
that it
was caused by the chain saw which was being used by Ndlela. He said that it had
happened on a previous occasion that a chain
saw started a fire. On that
occasion, however, it was pos-sible to extinguish the fire quickly.
That the use of a chain saw in a forest can cause a fire to start is clear
from the evidence of the appellant's witness, Lane, who
is employed by a company
specialising in the sale of forestry equipment, such as chain saws. Lane
explained how this can happen with
reference to the particular model of chain
saw that was being used by Ndlela, as testified to by Byrne. Briefly, the
machine has
a one-cylinder two-stroke engine, driven by a mixture of petrol and
oil. It is fitted with an exhaust system containing a sealed
baffle box or
muffler. The outlet of the exhaust points to the front of the
/machine ...
17.
machine, away from the operator. When in use, the machine
emits hot exhaust gases emanating from the cylinder, through the exhaust
outlet,
with considerable force. It is possible for a deposit of carbon particles to
build up in the baffle box. When that has happened,
it is possible for a red-hot
carbon particle to become dislodged from the baffle box and to be emitted
through the exhaust outlet.
If it then finds its way into dry material on the
floor of the forest, it is possible for a fire to be ignited, especially if the
glowing particle is fanned by wind into causing a flame. Lane said that it was
possible that a fire could be caused in this way,
but that it was "highly
unlikely"; in his 10 years of experience in the forestry field he had
encountered only one experience of
a fire being caused in this fashion. He said
further that if a fire was caused in this manner, he would expect to find, upon
an examination
of the chain saw involved, a substantial and uniform carbon
/deposit ...
18.
deposit in its exhaust system. If an examination of the
exhaust revealed no trace of any carbon deposit, there is no possibility at
all
that the chain saw could have caused a fire.
From the evidence of Gibbs, Swart and Byrne it appears that on the morning
after the fire they attended a meeting of the appellant's
employees, which was
held to try and establish exactly what the cause of the fire was. Swart said
that it was suggested (it does
not appear by whom) that it could have been
caused by the chain saw. Byrne was asked to bring the particular chain saw that
Ndlela
was using to Gibbs's office, which he did. It was decided to have the
chain saw "stripped" by somebody mechanically qualified (probably
one of the
appellant's own mechanics), who would then furnish an opinion on whether it
could have been a faulty chain saw. Swart
said a report was subsequently
received, and that "the matter was left there at that stage." Swart did
/not ...
19.
not himself examine the chain saw. Nor did Byrne. According
to the latter, the chain saw was returned to him after a while, with
instructions
to keep it aside in case it was wanted again. At a later stage he
was asked to take the muffler off and to take it to Gibbs, whom
he presumed was
going to have it tested. Later it was returned to him, and after some weeks he
was given permission to put the chain
saw back into use, which he did. When
asked whether there was a carbon deposit in the machine, he replied that he
could not remember.
I must say that I find it strange indeed that Byrne, who was
in charge of the chain saw workshop that the appellant maintained on
its estate,
ostensibly had no interest in ascertaining what the condition of the chain saw
was, nor any memory of it. It is not necessary,
however, to pursue this aspect
of his evidence. What does appear from the evidence to which I have re-ferred,
as a whole, is that
the appellant's employees
/caused ...
20.
caused the chain saw to be examined with a view to
establishing whether its condition was such that it could have caused the fire
and that they received a report on that score. Yet the appellant made no
at-tempt at all to prove what the effect of the report was.
Nor was any attempt
made in the evidence placed before the trial Court to show that the appellant
was unable to produce evidence
of the report itself or of the condition of the
chain saw. The appellant accord-ingly failed to prove that there was no carbon
deposit
in the exhaust system of the chain saw, while on the available
information it could have done so, if that were the case and it had
wished to do
so.
The trial Judge found that "the most probable cause of the fire was the
operation of Ndlela's chain saw." In my view that finding
is fully justified on
the evidence. In any event, it may be observed that
/that ...
21.
that finding as to the cause of the fire is really the most
favourable one that could be made, from the appel-lant's point of view.
I say
this because there is no suggestion in the evidence that the fire could have
been caused otherwise than through human agency;
and if it is postulated that
the fire was caused neither by one of the appellant's employees having smoked in
the forest (which would
clearly have constituted negligence) nor by the
operation of the chain saw, it would inevitably follow that the appellant had
failed
to furnish any ex-planation at all concerning the cause of the fire,
which, in turn, would lead inevitably to the conclusion that
it had failed to
rebut the statutory presumption of negli-gence. The finding that the fire was
caused by the operation of the chain
saw involves the further finding, flowing
necessarily from the evidence of Lane, referred to above, that there must have
been an
appreciable accu-mulation of carbon deposit present in the muffler
of
/the ...
22.
of the exhaust of the chain saw. (For ease of reference I
shall henceforth refer to a chain saw in such a con-dition as a defective
chain
saw.) It is upon that footing that the issue of negligence must now be
con-sidered.
Lane in his evidence described the maintenance and servicing procedures in
respect of chain saws, as recommended by his company. There
are daily, weekly
and monthly servicing procedures. I need refer only to the monthly service. Lane
said that the monthly ser-vice
inter alia
"would entail removing the
exhaust, de-carboning (sic) if there was any carbon on the exhaust." Counsel for
the appellant submitted
that the servicing of the machine in relation to the
decarbonisation of its exhaust was intended merely to ensure that it was
main-tained
in an efficient working condition and that it had nothing to do with
its safety in regard to the causing of a fire. The submission
is wholly
unsubstantiated by
/anything ...
23.
anything appearing from the evidence placed before the trial
Court. In fact, it is refuted by the following passage in Lane's evidence:
"Are these machines used extensively in
the timber industry for tree felling? --- They
are.
Are they regarded as being safe for use in
forest tree cutting? --- Yes, they are provided
they are maintained accordingly."
Byrne, who, as I have mentioned, was in charge of the appellant's chain saw
workshop, said in his evi-dence that the appellant's chain
saws were serviced on
a regular basis of a daily service, performed by the operators, and a major
service after every 10 days' use,
performed by the appellant's chain saw
mechanics. It is quite clear from his evidence, however, the the exhaust systems
of the chain
saws were never inspected for the presence of carbon deposits. He
explained that the exhaust "boxes" were sealed and that there was
no way in
which they could be opened in the appellant's workshop.
/Nowhere ...
24.
Nowhere in his evidence in chief or under cross-examination
did he suggest that the exhaust system of a chain saw was ever sent away
to the
agents for inspection and decarbonisation, if necessary. In his re-examination
the following passage appears:
"Had you ever at any time allowed any chain saws to be sent into the field
when
you knew they were emitting carbon?---
No. In our 10 day service, if a port on any of the cylinders had carboned up
to what we considered to be excessive, that cylinder
was sent in to the agents
to be decarbonised."
Byrne was here referring to the cylinder itself; he did not mention the
exhaust. On his evidence, therefore, the appellant took no
steps at all to
ensure that its chain saws did not become defective in the sense mentioned
earlier.
There is a further feature of Byrne's evidence which must be mentioned, in
this regard. He said that the appellant assigned a number
to each of its
chain
/saws ...
25.
saws, and that it kept a servicing register in which was
recorded everything that was done in the case of every 10 day service in
respect
of each chain saw, against the appropriate number. There was no suggestion that
the number assigned to the chain saw used
by Ndlela could not be ascertained, or
that the servicing register was not available to be produced in evidence. On the
available
information, therefore, the appellant could have proved exactly what
servicing had been given to the chain saw in question. This
it did not do.
Ac-cordingly it failed to prove that its usual servicing procedures were
actually applied to the particular chain
saw used by Ndlela,
There is no evidence to suggest that a substan-tial and uniform accumulation
of carbon particles, as referred to in Lane's evidence,
could have occurred so
rapidly that its onset would not have been detected timeously by means of a
regular inspection and servicing
/of ...
26.
of the exhaust system, such as described by Lane. It follows,
then, that the appellant failed to prove that it could not have prevented
the
chain saw used by Ndlela from being in a defective condition.
Counsel for the appellant argued that the risk of a fire being caused by the
use of a chain saw was so remote that it was not a real
risk, and that the
danger of a fire being caused in that way was not a reasonably foreseeable
possibility. I do not agree with this
argu-ment. In support of it, counsel
relied mainly on the evidence of Lane, Magagula, Gibbs, Swart and Henderson.
Lane's evidence
has already been mentioned. It will be recalled that he said
that it was highly unlikely that a fire would be caused by a chain saw
(he also
described such a possibility as "remote"), and that he had had only one
experience of that happening. Magagula had also
had one such experience. Gibbs
had had no such ex-perience, but at the time of the fire his experience of the
forestry industry was
so limited that his evidence
/on ...
27.
on this point is of no consequence. Swart had had no such
experience. Henderson is a farming consultant with some experience of forestry;
he said that in 20 years' experience he had not encountered a fire being started
by a chain saw.
Byrne's evidence on this aspect of the case is, however, more to the point.
In his career in forestry (which extended over 28 years)
he had had personal
experience of a fire being started by the use of a chain saw on "probably" 3 or
4 occasions. On each of those
occasions, he said, it was "fortunately" a calm
day, without "excessive wind" and when the conditions were not "excessively
dry",
so that the fire could be extinguished quickly merely by the operator
stamping on it. He at first professed to be unable to say how
"exactly" a chain
saw could cause a fire, but an analysis of the evidence he gave thereafter
reveals that he knew full well how a
defective chain saw could cause a fire.
/He ...
28.
He had himself observed in the workshop how bits of carbon
particle could be blown out of the muffler in the exhaust of a chain saw,
and he
gave the following graphic description of what could happen in a forest:
"Now one of the requirements of harvesting is that you try and cut your tree
as low as pos-sible. You try to leave as small a stump
as possible in the field
so consequently what the operator does to start off with, when he's going to
fell a tree, he goes along
and he clears all the needles immediately around the
base of that tree. So you might have a build-up of 6 inches of needles around
a
tree which he now clears down to ... virtually down to earth, to sand level.
Then he places his chain saw and he cuts as low as
possible, to cut that tree
off. Now by doing that and cutting as low as possible, that exhaust is blowing
down, blowing virtually
directly into the needles. You've got heat, you've got
gas from that exhaust and I would say if you've got those requirements, those
things necessary and you get a glowing piece of carbon coming out, then I would
say that you could start a fire and it could start
to smoulder. It could
smoulder for 5 minutes, it could smoulder for 10 minutes - I don't know.
MR. SOUTHWOOD
: With the wind blowing hard?
--- You see, in a ...let's look at that
place very closely. You've got that guy
/who's ...
29.
who's cleared 6 inches of duff - what we call duff - away
from the base of that tree. It might be that the stump which let's say is
4
inches high is protecting that glowing coal. Now it's smouldering, it's
smouldering, it's getting a bit bigger and as the smouldering
gets bigger then
if the wind hits it, away it goes."
In another passage of his evidence under cross-examina-tion the following
appears:
"So if you sent a chain saw into ... now those are dangerous things
presumably, chain
saws throwing out carbon, are they? --- Do
you mean a danger insofar ... from a fire point of view?
Yes. --- Well let's say that it must be
danger because there is a possibility that that could start a fire.
So if you send a chain saw out with carbon deposit in the exhaust aperture,
you're looking
for trouble? --- No, I don't necessarily go
along with that.
Why not? --- Because I would say that
then it would depend a lot on the condition of your muffler.
Well, you've just said that bits of carbon falling from the exhaust are a
potential source of fire. Now if they are present when you
send a chain saw into
the forest, they can fall off in the forest can't they? --- Mmm.
/So ...
30.
So they're a potential source of fire in the forest, aren't
they? --- Ja.
So it's dangerous to send a chain saw into a forest with carbon on the
exhaust - in the
exhaust outlet isn't it? --- Ja, but as I say,
I wouldn't go along with just saying carbon on the exhaust port. What about
the carbon that you get building up in your muffler?
Well let's deal with the exhaust port first shall we. Is it dangerous or is
it not dangerous to send a chain saw into a forest with
carbon deposits in the exhaust port? --- Well
I'd say it's dangerous to send a chain saw out ... if we're going to go along
and say that it's possible for a chain saw to start
a fire by red hot carbon
coming out of the exhaust, then we must say it's dangerous.
So your answer to my question is yes? ---
Ja."
On this evidence it is clear, in my view, that the risk of a fire being
caused by the use of a defective chain saw was a very real
one, and the danger
of a fire being caused in such a way was reasonably foreseeable. At best for the
appellant, in any event, it
failed to prove the contrary.
Counsel for the appellant argued next that the
/risk ...
31.
risk in question was so remote that no reasonable person
would have taken steps to guard against its materialising and thus injuring
other persons. The validity of this argument depends, of course, upon the
consideration of two further questions: first, as to the
nature of the harm that
was likely to be caused to other persons, such as the respondents, if a fire
broke out on the appellant's
property; and second, as to the nature of the steps
the appellant could have taken to prevent such harm eventuating.
As to the first question, the trial Judge said in his judgment:
"It is clearly disclosed by the evidence that the relevant employees of the
defendant knew at all material times that, if a fire started
in defendant's
plantations in conditions such as those prevailing on the day in question, the
fire would spread rapidly and that
it would be almost, if not totally,
impossible to contain it. In such circumstances it seems to me that the
defendant's employees
must have been aware that if a fire started on defendant's
property there was a significantly
/grave ...
32.
grave risk that it could spread to the properties of
adjoining farmers and cause damage on such properties. Aware as they were of
the
dangers of fire in the prevailing conditions the defendant's employees must have
realised that any damage to others which might
result from a fire in their
plantation would be of a serious nature."
These observations are fully justified by the evidence. In any event, once
again, at best for the appellant, it has not proved the
contrary.
As to the second question, it is clear from what has been said earlier in
this judgment that Magagula and his fellows could not have
stopped the fire from
spreading, with the means at their disposal, and that the appellant's
fire-fighting apparatus and procedures,
however efficient in general, could not
in the prevailing circumstances have been deployed in time to stop the fire from
spreading.
On the other hand, as pointed out earlier, there was a period of at
least about an hour after the wind had attained exceptionally
hazardous
/proportions ...
33.
proportions, and before the fire started, in which the
appellant could have taken measures to prevent the possibility of the fire
being
caused at all, or to ensure that if it started, it could be promptly
extinguished.
The trial Judge found that there were two ways in which the appellant's
employees could have taken action: they could have caused
one or other of the
appellant's fire-fighting units, such as one of its large tankers equipped with
fire-hoses, to be present at
the place where the tree-felling operations were
taking place; or they could have caused the tree-felling gang to be withdrawn
from
its operations in the forest altogether. Counsel for the appellant
criticised these findings, on the ground that it appeared from
the evidence of
Henderson and Melle that it was not usual in the forestry industry to adopt
either of the precautions mentioned,
even in the adverse weather conditions
involved here. In my view the criticism is not well
/founded ...
34.
founded. In the first place, what the witnesses re-garded as being usual
cannot be decisive of the question, to be considered objectively,
as to what
precautions a reasonable person in the position of the appellant would have
taken. Secondly, and more importantly, the
wit-f nesses were speaking generally
and they were not invited to direct their minds to a situation where a defective
chain saw was
being used in the tree-felling operations. I have little doubt
that, if their attention had been drawn to that circumstance, which
is of
crucial importance in this case, they would not have ventured disagreement with
the findings of the trial Judge.
Counsel for the appellant argued also that the measures referred to by the
learned Judge would have been uneconomic and accordingly
could not reasonably
have been expected of the appellant. This argument is without merit. The cost of
a precautionary measure, in
the present context, must be assessed in relation to
the
/magnitude ...
35.
magnitude of the harm which was likely to result if it were
not taken. No evidence at all was directed at such an enquiry. All that
appears
is a bald statement by Swart, concerning the suggestion that a fire tanker
should have been available at the scene of the
felling operations, that "we
can't afford to do a thing like that." This obviously affords no basis for
counsel's argument. Moreover,
the argument loses sight of the vital fact that it
was, first and foremost, the defective condition of the chain saw that Ndlela
was using in the prevailing conditions that created the potentiality of a fire
being started, with calamitous consequences. It is
inconceivable that the cost
of maintaining a chain saw in a safe condition can be of any relevance in this
case.
It follows, therefore, that the appellant failed to prove that it could not,
by taking reasonable precautionary measures, have prevented
the damage
suffered
/by ...
36.
by the respondents. I am accordingly in respectful agreement
with the following conclusion expressed by the trial Judge:
"It seems to me that where the damage likely to be caused by a fire starting
in those conditions is potentially as far-reaching as
the evidence disclosed it
to be, a per-son in the position of defendant should not engage in an activity
which might lead to such
damage, such as tree-felling with chain-saws which are
capable, if defective, of causing a fire, without first ensuring that the
equipment used is maintained in a safe and efficient condition or that the means
are readily at hand to extinguish any fire which
might be started by the use of
equip-ment capable of starting a fire."
In the final result, the trial Court was correct in finding that the
appellant had not rebutted the statutory presumption of negligence,
and in
granting judgment in favour of the respondents.
The appeal is dismissed, with costs.
A.S. BOTHA JA JOUBERT JA
GALGUT AJA